What does it mean to be dishonest?

Brief Thoughts is our new series about interesting cases that illustrate how the law works.

In 2016, the Secretary of State for the Home Department deprived Hafiz Aman Ullah of his British Citizenship, claiming that he had obtained it through fraud. For the deprivation of citizenship to be lawful, it was necessary to find that Ullah had been ‘dishonest’ when completing his application.

The Secretary of State claimed that Ullah had been dishonest because he had answered “No” to a question in his application asking whether there was, in effect, anything that might cast into doubt his good character. However, Ullah later pleaded guilty to an offence relating to possession of criminal property, with the offence having occurred before he completed the form. 

After hearing oral evidence from Ullah, the First Tier Tribunal held that Ullah had not been dishonest. However, on appeal, the Upper Tribunal concluded, without further hearing or receiving oral evidence, that the First Tier Tribunal decision was wrong in law, and that Ullah had been dishonest. Ullah appealed this decision.

Last week, the Court of Appeal overturned the Upper Tribunal’s decision and ruled that the deprivation of Ullah’s citizenship was unlawful, as the First Tier Tribunal had been entitled to find that Ullah had not been dishonest.

But what does ‘dishonesty’, in law, actually entail?

The test for ‘dishonesty’ in English and Welsh law comes from a case called Ivey v Genting Casinos. This case involved a gambler who used a technique called ‘edge-sorting’ to win £7.7m from a casino. This technique involved rotating certain cards within a deck to exploit a manufacturing defect of the card backs, allowing the gambler to distinguish those particular cards to gain an advantage. The question for the Supreme Court was whether the gambler acted dishonestly.

The Court concluded that the gambler had been dishonest. In doing so, the Supreme Court held that ‘dishonesty’ involves both a subjective and objective element. These concepts are very familiar to lawyers – but require a bit of unpacking for everyone else. 

When lawyers talk about the “subjective” they are interested in what was actually in the individual’s mind. In other words, what did the person accused of dishonesty actually believe?  This is the subjective element of the dishonesty test. The “objective” element then considers whether that person’s conduct, given their actual state of mind, would be considered dishonest according to the standards of ordinary decent people.

The Court gives an illustrative example – a man who comes from a country where public transport is free and travels on the bus without paying, genuinely believing that it is free. Having ascertained that this was the man’s state of mind, ordinary decent people would not consider his behaviour dishonest. The man’s subjective state of mind is therefore essential to determining whether his actions were, or were not, dishonest.

The Court of Appeal in Ullah applied this test. The Court held that the Upper Tribunal got it wrong by treating the fact that Ullah had pleaded guilty to an offence of knowing or suspecting that he was in possession of criminal property as decisive. Rather, the First Tier Tribunal was correct to start by considering evidence of Ullah’s actual state of mind, which the judge then measured against the objective second limb of the test. 

In giving evidence, Ullah addressed his state of mind when he completed the form. He told the court that he had ticked “No” because he honestly believed that was the correct answer. He denied dishonesty, and the Secretary of State did not challenge this evidence, despite being given multiple opportunities to do so.

This case highlights the important role that subjective evidence – the state of someone’s mind – plays in our law, including in how we define concepts such as ‘dishonesty’. In theory this is simple – as Lord Justice Bowen quipped in a famous case of Edgington v Fitzmaurice from 1885 – “The state of a man’s mind is as much a fact as the state of his digestion.” Of course, finding out that state of mind is not so straightforward (Lord Justice Bowen’s very next line apologised “It is true that it is very difficult to prove what the state of man’s mind”) but, because the Secretary of State did not challenge Mr Ullah’s evidence, that was not an issue the courts needed to wrestle with here.